BARKER — The Town of Somerset's proposed new zoning laws don't mention Apex Clean Energy by name, but no doubt they were written with the company in mind.
The zoning code amendments, introduced at the town board's Dec. 13 business meeting, constitute an outright ban on commercial-scale wind turbines in this small, rural community.
The proposed local laws, which go to a public hearing at the board's Jan. 10 meeting, ban all structures over 200 feet tall and severely restrict where industrial wind energy systems could be located. Under the proposals, they could only be located in an industrial zone, of which the town has few.
Industrial wind turbines also could not be placed within 1 mile of any village, hamlet, school, church, cemetery or historic site, or within 3 miles of the Lake Ontario shoreline or any planned or existing public park. Additional restrictions bar large turbines from being placed within one-half mile — or a distance of six times the turbine's height, whichever is greater — of any residence, structure, public road or property line.
That, by design, leaves virtually no space in the 37-square-mile town in which industrial wind turbines could legally be developed.
Town Supervisor Dan Engert doesn't mince words, saying the proposed laws are in fact intended to keep out any and all industrial wind turbines.
“This is by design to exhibit our zoning authority ... to maintain the rural character of our town," Engert said.
When Apex announced its prospective plan to construct up to 70, 600-foot wind turbines in the Barker-Lyndonville area in early 2015, it met intense resistance from residents, who say the wind farm would damage the community's rural character. Residents have turned out at public hearings, posted lawn signs and sent letter after letter to the Union-Sun & Journal protesting the possibility of Project Lighthouse Wind. They even formed an advocacy group, Save Ontario Shores, to help communities opposed to these projects fight wind energy developers.
“They're proposing turbines that are in the neighborhood of 60 stories high, and frankly, the overwhelming majority of comments from my community is that 65 to 70, 60-story-high structures is obscene," Engert said. "And I would agree.”
In its response, Apex touted the tax and economic benefits of its proposed, up-to 200-megawatt facility. Area landowners would receive $1 million in lease revenues. Affected towns and school districts would pull in another $1.5 million a year. The facility would bring hundreds of temporary construction jobs and 10 full-time positions upon its completion.
"We have significant support in the community from these landowners and non-landowners alike," Apex representative Taylor Quarles said in a statement. "Many in the community are hopeful for the benefits that a project like ours can bring to all area residents."
Quarles added that the turbines would be located on 10,000 acres of private land, with the permission of those landowners.
Turbines zoned out of town?
Apex didn't specify where it's planning to locate Lighthouse Wind. However, nearly anywhere would be in violation of the strict setback requirements in the proposed amendments to Somerset's industrial wind energy zoning code.
The amendments stipulate that no person or entity can waive the setbacks. What's more, if there are overlapping setback regulations, the more restrictive one applies.
In the case of public roads, structures, residences and property lines, the setbacks are either half a mile or six times the structure's height. For the turbines Apex is proposing, that means the setback would be more than two-thirds of a mile.
That amendment also simply bans all wind turbines above 200 feet — a distance which would even cover more average-sized turbines of about 300 to 400 feet. (For comparison, the Steel Winds energy project turbines in Lackawanna are about 400 feet tall.)
Apex's proposed turbines would stand at three times the height limit.
Elsewhere the amendment lays out noise limits. Turbines that generate more than 150 kilowatts could not produce noise above 42 decibels between 7 a.m. and 9 p.m., or above 35 dBA between 9 p.m. and 7 a.m.
Engert said the town based these limits off several comprehensive studies on the effects of noise from wind turbines. He added that it's of particular concern, and said energy producers can utilize brakes and other tools to limit noise.
“You can imagine the sound that's gonna emanate from a structure of that size spinning around at 185 miles per hour," Engert said. "That's a very serious public health issue we are concerned about.”
Zeroing in on wind supports
Two other amendments address the zoning code's provisions for industrial districts and tall structures.
The latter would ban all structures taller than 150 feet (though with exceptions) and outright ban wind energy facilities. Exemptions would exclude turbines that generate electricity for on-site consumption and/or provide independence from the power grid.
Those exceptions seem to permit private citizens and business owners to erect smaller turbines for personal use. (Although those turbines do send electricity back to the power grid when electricity generation is high, to compensate for periods with low wind.)
Engert acknowledges the 150-foot structure limit would also prevent the placement of meteorological towers like the three, 190-feet met towers Apex currently has in town to gather wind data.
“I frankly don't ever want to go through another wind project in my town after this project is hopefully defeated," Engert said. "So if this bans meteorological towers from being erected for any future potential wind project, that's good news for me and the rest of the town."
The amended zoning code also requires any tall structure to undergo "Type 1" assessment under the State Environmental Quality Review Act, meaning Apex would have to complete a full-length environmental impact statement on any additional met towers before it could get a special use permit for them.
In the fall of 2016, the Somerset planning board put off a decision on Apex's request for a special use permit to install two temporary met towers, indicating it wanted the company to complete a Type 1 review of the towers first. Apex sued, asserting the towers were temporary and didn't require full-length environmental review. This past February, a Niagara County Supreme Court justice agreed and ordered the planning board to vote on Apex’s request. So, the board voted to approve the special use permit — with numerous conditions.
Apex banking on Article X
Benjamin Wisniewski, a special counsel representing the town in matters involving Apex, maintains that the town has the power to decide which actions can require a Type 1 SEQR.
“The town has the authority to pass local laws that are more protective of the environment,” he said.
Quarles said this is the second time in two years that Somerset has changed its wind energy ordinance.
"As we did last time, we plan to work cooperatively with the town throughout this process," Quarles said. "This will include carefully reviewing these new proposed law changes and submitting comments during the upcoming public hearing."
Apex also pledged to adhere to the process outlined in Article X of the New York State Public Service Law, which puts an appointed board in charge of siting review/permitting of major (25 mW or more) electric generating facilities. The siting board consists of five members of the governor's administration and two local representatives of the area where a project is proposed.
Engert and Wisniewski say they are confident the town's zoning laws, if passed, would withstand any potential challenge.
“We don't believe they violate any state or federal or constitutional law whatsoever," Engert said. "And we'll defend the town's right to develop and plan and zone appropriately for purposes of health, safety and the general well being of the town.”
Meantime, Quarles said Apex will release project information as it becomes available.
"We are eager to release a turbine layout as soon as possible in order to foster more detailed discussions within the community regarding the significant benefits the Lighthouse Project will bring to all the residents of Somerset," he said.